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2. Provisional and protective measures are the fundamental part of civil justice and neccessary to secure the enforcement of decisions. Especially in international disputes, these measures are the most controversial issue between the parties and courts. They are aimed at protecting rights, parties, proceedings and judgements. In essence, they are only meant to be temporary and the exact period for which they are valid and effective is defined by the court which orders the measures or in law. They can take in many forms. These measures can be found in every developed legal system. The rules concerning these measures as well as the contents and their scope are however
3. Concerning to provisional and protective measures in international disputes,…
4. Concerning to concept of provisional and protective measures, it is difficult to define. It could be express that, something less than a full judgement. Because of that reason, neither in national laws nor in projects that aimed unification and harmonization of civil procedure, it is hard to find a definition concerning these measures. The concept of meaures, generally, accepted as a relief when necessary to preserve the ability to grant effective relief by final judgement or to maintain or otherwise to regulate the status quo according…
5. In Brussels I Regulation, for the concept of these measures, Regulation…
6. Especially, gathering of evidence, protection and identification of evidence…
7. International jurisdiction of courts to grant provisional and protective…
Also the main fact, that has to be taken into consideration is the jurisdiction problem…
In generally, right of jurisdiction regarding measures is determined on national…
In international disputes, sometimes, there need to be taken provisional and protective…
8. The court where the measure is taken, instead of the court on the merits, needs to have an admissable and reasonable link to decide these measures. With a view to afford an opportunity to take these measures from the most convenient court, both Brussels I Regulation and ALI/UNIDROIT Principles are looking for “real connection link”.…
9. Beside this basic principle, there has been lots of matters related to measures and international jurisdiction such as; general jurisdiction, special jurisdiction, prorogation of jurisdiction, exclusive jurisdiction, exorbitant jurisdiction and lis pendes.…
Types of these jurisdiction has an important effect on measures both in practice…
10. The subject matter of jurisdiction on the merits and the matter of jurisdiction belong to measures are different so, in this circumstances, it obviates objections concerning to lis pendes.…
11. According to Brussels I Regulation and ALI/UNIDROIT Principles and Rules,…
12. Another subject that must be mentioned is applicable law to provisional and protective mesures. Legal scholars have different solutions to offer on this isssue. On one side, measures are essentially connected with the procedure, so it is the part of lex fori. On…
13. For the purposes of international proceedings, recognition and enforcement of foreign court decisions plays an important role but, it has a complicated and long proceeding period with full of terms and potential troubles. In the context of an international dispute, these measures could be take place wholly or partly on the territory of a State other than the one in which they were ordered. But it seems that, national laws has always been reluctant to recognise and enforce foreign decisions made for provisional and protective purposes. Especially measures taken by foreign courts, generally, aren’t recognized and enforced unless they comply with the conditions which are seeking by national law. In this regard, it could only be possible if there have been any bilateral or multilateral agreement or convention between the states. …
This negative approach has some reason. Firstly, this measures must have a provisional…
14. In the context of Brussels I Regulation, provisional and protective measures are enforceable and can have a res judicata effect…
In terms of ALI/UNIDROIT Principles and Rules, recognition and enforcement of measures…
In Helsinki Principles, recognition and enforcement of measures assessed as a subject…
15. For recognition and enforcement, the main problem belong to measures are their provisional character and to breach the right of defence. In Brussels I Regulation, the provisionality haven’t been determined as an obstacle through enforcement. Our belief is on the paralel way like Regulation because, provisionality is the character of measures and they have to be assessed from a different point of view. As for surprise effect, to have an expected effect from the measure, it must be taken without notice otherwise, to provide legal protection could me impossible. Also, with a guarantee taken from
